International Criminal Court: Why Africa?

International Criminal Court: Why Africa?

The one question we all have is, Why Africa? Why Omar Al Bashir and not George W Bush? Why Uhuru Kenyatta and not Tony Blair?

Since its inception in 2002, the ICC has opened no less than 20 criminal cases in 8 African Countries. Let us rephrase that. Since 2002, the ICC has summoned and/or issued arrest warrants for 36 individuals who all happen to be Africans. Coincidence? Unlikely. Conspiracy against Africans? Maybe. The one question we all have is, Why Africa? Is it that most crimes are perpetrated in the continent or there are other underlying reasons? Why Omar Al Bashir and not George W Bush? Why Uhuru Kenyatta and not Tony Blair?Why Omar Al Bashir and not George W Bush? Why Uhuru Kenyatta and not Tony Blair?

Rewind to 1994 where the International Law Commission presented a Draft Statute for an International Court to the UN General Assembly. In June 1989, Prime Minister Robinson of Trinidad and Tobago had proposed the creation of an international court to curtail the illegal drug trade which transcended national territories and was therefore hard to control. This was an idea world powers had played around with in historical times with numerous tribunals having been formed to deal with the Germans and Japanese after the Second World War and then such genocides as that of Rwanda. The ILC presented a draft of 12 crimes from consultations with governments and of those 12, the Special Rapporteur omitted 6 in a subsequent draft. The omissions included colonial domination and other forms of alien domination, apartheid and “mercenarism”. In actual facts, the Rome Statute which became the foundation of the ICC empowers the court to try individuals for only four categories of offenses; Genocide, War crimes, crime against humanity and crime of aggression. Interestingly, the remaining crimes are almost a legal architectural edifice meant to convict mainly the Africans which has been seen to be the case.

The Special Rapporteur argued that if the court stood any chance of gaining universal acceptance, it would have to avoid “controversial and widespread” crimes. This is a very interesting argument that leaves us wondering what controversial and widespread means. Can we dare say controversial and widespread crimes are defined as those crimes committed by Western powers? They argued that the court’s mandate had to be narrow as too wide a mandate would result in failure. In a way, from the onset, the ICC was framed in such a manner that pre-empted it of any possibility of bringing Western leaders to account. That is why Omar Al Bashir is charged and Tony Blair is not.That is why Omar Al Bashir is charged and Tony Blair is not. As for America, it simply did not ratify the Roman Statute and is therefore not bound. Quite clever for a nation guilty of starting fires all over the world in pursuit of its policy interests. An argument against the Roman Statute has been that most omitted crimes “constituted serious offenses against the human conscience and threats to the peace and security of mankind”. How can we explain the exclusion of mercenarism, colonialism, apartheid and international terrorism? The only explanation is that in all these crimes, Africans are usually at the receiving end and therefore they are not as “criminally serious” as those they perpetrate themselves.

Since it was clear from the onset that the ICC was not going to be a very fair court in its dealings, why then did African leaders agree to it? The main reason would be the obsequious nature of African politics. Yes, it seems like a harsh proposition but it is no secret that African countries are subjected to “performance appraisals” to get access to funding from international bodies and investment. Democracy and “the rule of law” are said to be a part of the metrics used to assess the economic environment and being a part of a court based on the claim of securing human rights seemed like a good idea at the time. It made countries seem genuinely sold on the idea of observing human rights. This compounded with the horrendous genocides of days gone by pushed countries to be signatories of their own arrest warrants. After the dark days of Rwanda, every country sought to prove it was not that bad and would never tolerate such behavior in its territory. This was not such a bad thing at all as human rights violations are unnecessary and cause so much strife on the part of the victims. What is sickening however, is that the pledges to human rights were not done as a sign of evolved morals of leaders but in a sycophantic bid to be the “good boys and girls who deserve aid and investment”. Why is it so hard for leaders to just protect citizens for no material gain? Is life always weighed against the bank-note?

“The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of imperial powers,” – uhuru kenyatta“The ICC has been reduced into a painfully farcical pantomime, a travesty that adds insult to the injury of victims. It stopped being the home of justice the day it became the toy of imperial powers,” so said Uhuru Kenyatta at an emergency AU summit in 2013 calling for the failed en masse withdrawal of African countries. The same sentiments were expressed by the ANC political party of South Africa in October 2015 which in a statement claimed, “The International Criminal Court is no longer useful for the purposes for which it was intended.” At this point the ANC was of the feeling South Africa would withdraw but after policy considerations, none of that was done. The yoke of neo-colonialism is a hard one to desert as African countries have seen.The yoke of neo-colonialism is a hard one to desert as African countries have seen. Leaders walk onto podiums and claim they have had enough but do nothing positive about their sensational threats. Meanwhile, Africans continue to be charged in the ICC, sometimes for all the right reasons but the pretence that Africa is the only region where war crimes occur is an insult to the peace that prevails in most countries. If we are going to address war in Africa, let us also talk about the Iraqi, Syrian and Palestinian wars which the Western powers had and still have a heavy hand in. Why pick and choose? Some quarters have claimed the majority of the cases taken up by the court are raised by their countries of origin. All good arguments but is this court just waiting for reports? Is it so blind a court that it only works on what has been reported?

We wait for the day the threats by Africans to leave the ICC, a glorified extension of Western propaganda will materialize into actual action. We also wait for the day human rights will be respected by all African leaders not for IMF favors but because life is simply a sanctity. We wait for the creation of a pan-African Criminal Court that will effectively deal with crimes against humanity in Africa with no foreign influence. The colonialists should not continue to determine the framework we use to administer justice among our people more so when they are part of the root causes of conflict in post-colonial Africa.